Title V of the Charter sets out rights which attach to EU citizenship. EU citizenship was introduced by the Maastricht Treaty and commenced on 1 November 1993. The rights of EU citizens are now provided for under Treaty of European Union TEU and the Treaty on the Functioning of the European Union, TF EU and the Citizens Directive.
The concept of EU citizenship extended the rights of persons undertaking employment and business /economic activity to move to other EU states with their family members. However, in accordance with Article 21 TFEU such rights remain subject to conditions and limitations set out in the EU Treaty and EU legislation. In particular, persons who are not economically active must have sufficient resources and health insurance so as not to place an excessive burden on the social assistance budget of the state of residence.
Some Title V rights apply in relation to EU nationals. In other cases, the rights are extended to every person concerned.
Article 39 – Right to vote and to stand as a candidate at elections to the European Parliament
- Every citizen of the Union has the right to vote and to stand as a candidate at elections to the European Parliament in the Member State in which he or she resides, under the same conditions as nationals of that State.
- Members of the European Parliament shall be elected by direct universal suffrage in a free and secret ballot.
Article 39 confers rights to stand as a candidate at elections to the European Parliament. This restates the provisions in the EU Treaties. Limitations on these rights may be provided are provided on the condition that they respect the essence of the rights and freedoms, are necessary,,proportionate and meet legitimate objects recognised by the EU.
Article 40 – Right to vote and to stand as a candidate at municipal elections.
Every citizen of the Union has the right to vote and to stand as a candidate at municipal elections in the Member State in which he or she resides under the same conditions as nationals of that State.
Article 40 declares that every citizen of the EU has the right to vote and stand as a candidate in a municipal election in the member state in which he resides under the same conditions as a national.
Article 41 – Right to good administration
- Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
- This right includes:
(a) the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;
(b) the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;
(c) the obligation of the administration to give reasons for its decisions.
- Every person has the right to have the Union make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.4. Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.
Article 41 provides the important right to good administration.
The right to good administration was recognised as a general principle of EU law by the European Court of Justice long before the Charter. It is a fundamental procedural right. It applies for the benefit of all persons not just citizens. However, it is addressed only to the EU institutions, bodies, offices and agencies and not to the member states.
Impartial and fair administration is a basic requirement of the right to good administration. The institution involved must be impartial. The decision maker must be impartial at the individual and institutional level.
Elements of Right
In accordance with general principles, members of the institution who are responsible for or concerned with the matter, may not show bias or prejudice. Affairs should be dealt with and handled within a reasonable time. A delay in itself does not invalidate the decision.
It has been confirmed that the right extends to any interested parties whose affairs are concerned. The party need not be a party to the particular administrative proceedings.
The right to be heard is a basic requirement of the right to defence and to procedural fairness. The must be an opportunity to communicate the person’s case and perspective so that it is taken into account in the making of the decision.
The right of the person whose interests are concerned to access his or her file supplements the right to defence. The person must be in a position to determine what information is held about him, relative to the decision.
The duty to give reasons is an element of the right to an effective remedy in Article 47.
It’s also found within the Treaty on the Functioning of the EU, TFEU. Under that provision, a measure must disclose the essential objectives pursued by the institution. It must be sufficiently precise so that a person concerned can ascertain the reasons for the measure and so that the Court of Justice of the European Union may exercise its the powers of review. It does not necessarily require a specific statement of reasons for each of the technical choices made by the institution.
There are limits to the obligation to give reasons. In some cases, legitimate reasons such as confidentiality may apply, which may also be considered. However even in such cases where there are counter considerations, the is an obligation to provide a statement of reasons cannot be deprived of its essential content.
Article 42 – Right of access to documents
Any citizen of the Union, and any natural or legal person residing or having its registered office in a Member State, has a right of access to documents of the institutions, bodies, offices and agencies of the Union, whatever their medium.
Article 42 provides that any citizen of the EU or any natural or legal person residing or having its registered office in it has a right of access to documents of the institutions bodies offices and agencies of the union whatever the medium. Equivalent provisions exist under Article 15 of the Treaty on the Functioning of the European Union TFEU. It is subject to the provisions and limits in that article. It is binding on the European Union institutions and not the member states.
The article supplements Article 11 providing for the right to receive information. Article 11 refers to documents which are in the public domain. Article 42 refers to documents which are not necessarily in the public domain.
Article 43 – European Ombudsman
Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to refer to the European Ombudsman cases of maladministration in the activities of the institutions, bodies, offices or agencies of the Union, with the exception of the Court of Justice of the European Union acting in its judicial role.
Article 43 confirms the right of recourse to the European Ombudsman. This institution is provided for under Article 20 and 228 of the Treaty on the Functioning of the European Union. Under Article 52, the rights are subject to the conditions and limits laid down in the Treaty.
Article 44 – Right to petition.
Any citizen of the Union and any natural or legal person residing or having its registered office in a Member State has the right to petition the European Parliament.
Article 44 confirms the right of any citizen of the EU or any person or company residing or having its registered office in an EU member state, to petition the European Parliament. This restates principles reflected in Articles 20 and 227 of the Treaty on
European Union and the TFEU
Article 45 – Freedom of movement and of residence
- Every citizen of the Union has the right to move and reside freely within the territory of the Member States.
- Freedom of movement and residence may be granted, in accordance with the Treaties, to nationals of third countries legally resident in the territory of a Member State.
Article 45 confirms the fundamental right of free movement and residence within the European Union. Every citizen of the European Union has a right to move and reside freely within the territory of all member states.
Freedom of movement and residence may be granted in accordance with the Treaty to nationals and third countries nationals legally resident in the country territory of a member state.
Provisions for free movement are fundamental. Treaty provisions dating back to the origin of the EEC. The right of free movement for European Union citizens is now set out in articles 20 and 21 of the Treaty on the Functioning of the EU.
In accordance with article 52 (2) of the Charter, rights for which provision is made in the body of the treaties are to be exercised under the conditions and limits set out in the treaty. Accordingly, the right to free movement is subject to the general provisions in the Treaties applicable to such rights.
The Article recognises the rights of third country national family members provided for under the Citizenship Directive. The article creates an independent separate right of free movement for third country national family.
Article 46 – Diplomatic and consular protection
Every citizen of the Union shall, in the territory of a third country in which the Member State of which he or she is a national is not represented, be entitled to protection by the diplomatic or consular authorities of any Member State, on the same conditions as the nationals of that Member State.
Article 46 confirms the right of every citizen of the union the European Union in the territory of a third country in which the member state of which he is a national is not represented, is to be entitled to protection by the diplomatic and consular authorities of any member state, on the same conditions as nationals of that member state.
This is repeats provisions in Article 20 and 23 of the Treaty on the Functioning of the European Union. Accordingly, under Article 52(3) the exercise of the right is to be under the conditions and within the limits l in the Treaty accordingly.